October 23, 2008

A Fluid Boundary: The Free Exercise Clause and the Legislative and Executive Branches

Looking Ahead

The accommodation of religion raises some of the most difficult questions in church-state relations because it involves so many different and complicated areas of constitutional law. Most fundamentally, in seeking to promote religious liberty, such accommodations often appear to favor religion over nonreligion and thus seem to violate the Establishment Clause. Balancing these two competing constitutional values of religious liberty and disestablishment is a challenging task. Further constitutional problems can arise because a legislative accommodation, by expressing distrust in the judiciary’s ability to protect religious liberty, can potentially encroach on judicial authority, thereby blurring the separation of powers, a principle that lies at the core of the Constitution. Moreover, if the federal government enacts an accommodation that unduly extends its own power over state governments, that accommodation might violate the doctrine of federalism.

With all of these questions in the air, it is not surprising that there is much uncertainty about the future of religious accommodation. As former Chief Justice Warren Burger once wrote, the law governing the accommodation of religion “cannot be an absolutely straight line.” Given the fluidity of these constitutional boundaries, sparring among judges, politicians and citizens over how to navigate the course of religious liberty is likely to continue.


This report was written by Ira C. Lupu, F. Elwood and Eleanor Davis Professor of Law at George Washington University Law School; David Masci, Senior Research Fellow at the Pew Forum on Religion & Public Life; Jesse Merriam, Research Associate at the Pew Forum on Religion & Public Life; and Robert W.Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law & Religion at George Washington University Law School.

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